The justices say the Ontario employer’s perusal of an officer’s sexually explicit messages, sent on his work pager, is justified and didn’t violate the 4th Amendment.

By David G. Savage, Tribune Washington Bureau

June 18, 2010

The Supreme Court on Thursday rejected a broad right of privacy for workers who send text messages on the job, ruling that supervisors may read through an employee’s communications if they suspect rules are being violated.

In a 9-0 ruling, the justices said a police chief in Ontario, Calif., did not violate the constitutional rights of an officer when he read the transcripts of sexually explicit text messages sent from the officer’s work pager.

In this case, the high court said, the police chief’s reading of the officer’s text messages was a search, but it was also reasonable.

The court’s ruling comes at a time when most U.S. workers spend at least part of their day talking on phones or sending messages on computers or cellphones, many supplied by their employers.

At issue was whether the 4th Amendment’s ban on ‘unreasonable searches’ puts any limits on searches by public employers. The court said the limits were minimal, so long as the employer had a ‘work-related purpose’ for inspecting an employee’s desk or reading messages sent by the employee on an agency paging system.

This decision applies directly to the more than 20 million employees of state and local governments, as well as federal workers. In the past, the court’s decisions on the right to privacy have also influenced decisions in the private sector.

The ruling tossed out a privacy suit brought by a former police sergeant against the police chief in Ontario. Concerned that officers were using their text pagers mostly for personal messages, Chief Lloyd Scharf decided in 2002 to read some of them.

He learned most of the messages sent by Sgt. Jeff Quon were personal, and some were sexually explicit. Some of Quon’s messages were sent to an ex-wife, others to a girlfriend. In August 2002, for example, the audit found Quon had sent or received 456 messages, but only 57 were work-related.

After learning his messages had been read, Quon sued Scharf and the city, and won a ruling from the U.S. 9th Circuit Court of Appeals. Its judges said there was no need to snoop through Quon’s personal messages. They noted that Quon’s commanding officer had told him he could use the pager for personal messages, so long as he paid the cost.

But the Supreme Court disagreed. The justices said the law tilts the balance in favor of the employer, not the employee. A public employee has at most ‘a limited privacy expectation’ when using a text pager supplied by the police department, the justices said.

‘Because the search [by the police chief] was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable,’ said Justice Anthony M. Kennedy in City of Ontario vs. Quon.

More than 20 years ago, in its only similar ruling, the high court had upheld the search of an office and the desk of a doctor who worked for a state-run hospital in Northern California. In that case, the justices said that although the doctor had some right to privacy in his desk, hospital administrators could search if they had a legitimate basis for suspecting wrongdoing.

In Thursday’s opinion, the court said the same rationale applied to messages sent on a texting system supplied by a public agency.

The lawyer for Quon called the ruling a setback for employees everywhere. ‘It is a very bad opinion,’ said Michael McGill, a lawyer in Upland. ‘They are chipping away at the constitutional rights of employees.’

Kent Ashland, a lawyer for the city of Ontario, said the ruling vindicated the actions of the police chief.

‘This says what they did was reasonable in light of the circumstances,’ Ashland said. He also said the ruling was not a complete defeat for workers. ‘The court says there must be a legitimate reason for the search. It protects privacy to that extent.’

The text messaging case drew wide interest among experts in workplace law and privacy. Kennedy cautioned that the decision was narrow and did not seek to resolve all the disputes that will arise in an era when most employees spend much of their day using computers and cellphones.

Business lawyers said they advised employers to tell employees they did not have a right to privacy when they used a computer or cellphone supplied by the agency. And employees need to heed the warning, said Damon Dunn, a Chicago lawyer. They ‘need to anticipate their communication devices may be monitored for seemingly routine business purposes,’ he said, ‘even if the search reveals intimate and embarrassing information.’